Supreme Court watcher prognosticates on Supreme Court's gay cases

Freethought Radio Interview with Author and Journalist Linda Greenhouse

June 12, 2013

Read the (lightly edited) transcript of Freethought Radio's June 8 interview with Pulitzer Prize-winning journalist Linda Greenhouse to learn her predictions on the Supreme Court's upcoming decisions on Prop 8 and DOMA. Listen to the podcast.

Annie Laurie Gaylor: We are very pleased to have back with us on the phone, Linda Greenhouse, who is that household byline from covering the Supreme Court for the New York Times for three decades, keeps a hand in there and is now teaching at Yale Law School. And is now the author of a book about the author of Roe vs. Wade called Becoming Justice Blackmun. And is also the author of a book about Roe vs. Wade called Before Roe vs. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling. So welcome back to Freethought Radio, Linda Greenhouse.

Linda Greenhouse: Thanks very much I’m happy to be here.

Gaylor: Now, I had contacted you at the time that The New York Times ran a speculative article about what the Supreme Court is going to be doing about the gay marriage question, which were all waiting for. And, this article interviewed you but it also interviewed some people who were trying to see parallels between Roe Vs. Wade and a possible ruling by the Supreme Court and they were also discussing a treatise or speech by Ruth Bader Ginsburg in which she was expressing some reservations about Roe vs. Wade. You take the other side. Do you want to talk about that a little bit?

Greenhouse: Right. Now, Ginsburg and I are not on opposite sides on the marriage of reproductive freedom as put forward in Roe vs. Wade in 1973. Where she and I differ and, I hesitate to put it that way, because I have extremely high regard for her, it’s not a question of me vs. her at all. But I think we have a different take on what happened both before and after Roe against Wade. So her view, which she has been expressing for many years, is not at all new. Her view is that the court moved farther than it needed to in 1973 because abortion reform was marching inevitably across the county and if only the court had stayed its hand, the forces of reform would have done a better job. It would have been more stable had reform, decriminalization of abortion, come up through the legislative process. Her view is that the court viewing of Roe kicked off a backlash that has polarized and defined the issue since then. And that’s a very commonly held view. My colleague and coauthor, Reva Siegel, and I argue otherwise in the new edition that we have published of Before Roe vs. Wade, which is available on Amazon in the 2012 edition with the new material.

We’ve looked at the history and it is quite clear that actually the forces of reform have stalled due to extreme pressure from the Catholic Church. For example, in 1970 before Roe, the New York Legislature repealed New York’s 19th century criminal abortion law. They basically opened the door to access to abortion, pretty much without restriction. The church had a fierce reaction to this. They found an ally in President Nixon, in 1972 when he was running for re-election and wrote a kind of a public letter to the cardinals saying ‘I’m with you all the way’ and that New York should repeal what it did, it’s a horrible mistake.’ So the New York Legislature turned around and repealed the repeal. In the bluest of the blue states, in 1972. And only Governor Nelson Rockefeller’s veto kept the repeal from taking place. So, that tells us that if this could happen in New York State before Roe, legislative reform was basically done and had the court not ruled we really would have not had access to abortion or anything approaching reproductive freedom.

Gaylor: And in your book, Before Roe vs. Wade, you point out that there were 31 states where abortion was illegal, where it was stalled. That’s kind of comparable to what’s going on with the gay marriage. Thirty-three states have adopted constitutional bans on gay marriage, so it’s kind of similar.

Greenhouse: Yes it is similar. It’s very interesting. Of course we don’t know what the Court is about to do, but we have speculated about that. When the litigation against California’s Proposition Eight was brought four years ago by Ted Olson and David Boies —two very fine lawyers who had nothing to do with the gay rights movement — they were subject to a lot of criticism based on fear by the people who support same sex marriage: ‘You are making the wrong move and the wrong time. You are keying up the case that’s going to the Supreme Court. All you’re going to get is backlash. You’re moving too far too fast. Just let things take their course politically.’ And that was a very powerful argument.

There was really great anguish inside the gay rights legal community over this litigation having been brought by these two outsiders. And I think you could argue and I think it’s clear that actually the Proposition Eight litigation has had the opposite effect. It’s had a terrific effect in not only California, where of course Judge Walker, the district judge who struck down Proposition 8, made his ruling and then that was upheld by the State Supreme Court. It focused people’s attention on the issue, not only in California. The trial was extremely well conducted by Judge Walker. Everybody both sides had their say. I think that people coming fresh to the issue could see how weak the arguments were against same sex marriage. I think it really has propelled the issue not only in court but also in the legislative arena. We’ve seen real inroads now. I’m sitting here in my office in New Heaven, Connecticut. Now, every state in New England has same sex marriage. All six states. That’s pretty amazing.

Gaylor: That’s not like the Midwest.

Greenhouse: No, it’s not like the Midwest. Of course, what happened in Iowa was very unfortunate. The Iowa Supreme Court ruled for same sex marriage and three of the judges on that court were thrown out in the next round by the voters. But another of the judges got reauthorized last year, survived, and I think things are calming down even there. We’ll see. But the notion that many progressives have taken away from the Roe experience is: Don’t go there. Be afraid of the courts. If you have rights to vindicate try to find some other way to vindicate them. I think this proves to not be so true.

Dan Barker: What are the courts for anyway? I mean that’s the whole system of government we have here.

Greenhouse: Well, that’s right. That’s why Justice Ginsburg’s comments are troubling because we show in our historical envisioning of what happened after [italic]Roe[italic] it’s not that the county rose up in a backlash: ‘Oh my god the Supreme Court has made this ruling! This is terrible!’ It was quite the opposite. Example: Justice John Paul Stevens, who retired a couple years ago, was the first justice named to the Supreme Court after the Court had decided Roe against Wade. He was named to the Court by President Ford in December 1975. That’s almost three years after Roe. He did not get a single question in his Senate confirmation hearing about abortion.

Why? Because it hadn’t become a political issue by then. How did it become a political issue? Not spontaneously. But in the hands of the National Republican Party, who thought it would be a good wedge issue to drive ethnic Catholic, traditionally Democratic, northern urban voters into the arms of the Republican Party. This was the other side of the coin of the Southern Strategy that the Nixon Administration had implemented, in pulling the traditionally Democratic white voters away from the Democratic party and turning them into Republicans. So it was a very calculated set of moves. It was not a spontaneous backlash.

Barker: Didn’t people tell Martin Luther King Jr., that he was going too far too fast?

Greenhouse: Oh, sure. I mean the history of the civil rights movement is filled with people who had the guts to move forward with their constitutional claims.

Gaylor: We’re calling you from Madison, Wisconsin. This is the state that was the last state in the union to legalize contraception for unmarried people — 1974! Griswold versus Connecticut was 1965! If we were waiting for our legislature to do that we’d still be waiting.

Greenhouse: That’s amazing.

Gaylor: It was by federal court ruling. Isn’t that [true that] where you can’t win and you can’t get justice in the legislature, of course you have to turn to the court?

Greenhouse: Right, right. You know, you’re not going to win every case. But sometimes you can win even by losing if an issue gets crystallized and people begin to understand that. I mean, look at Bowers versus Hartwick, which was a Supreme Court decision in the 1980s that rejected the gay rights claim. And it became known as the Dred Scott of the gay rights movement.

You know, a really retrogressive, bad decision. Times change and in 2003 in Lawrence against Texas the courts voted 6-3 in favor of the gay rights claims in that case. And ruled that consensual gay relationships cannot be criminalized. That was a major step and I’m not sure if the Court really would have been impelled to do that had it not made a mistake, having done a lot of learning about the world in the intervening 16 or 17 years.

Gaylor: Teaching at Yale Law. Three decades covering the Supreme Court for The New York Times. We’re going to talk about a case they’ve accepted on government prayer and a little bit more on abortion.

(Break)

Barker: We’re continuing our talk with Linda Greenhouse, the Pulitzer Prize winner and author of a number of books. We’re talking specifically about the [pending] Supreme Court cases right now on gay marriage and gay equality. And before we move on to something else I just wanted to ask you, do you think Ginsburg is going to be cautious in this current decision based on current remarks?

Greenhouse: Well, actually I think all of the progressives on the court are going to cautious. The basic issue is if there is a constitutional right for same sex marriage. I’m not sure that Justice Kennedy is there, so I’m not sure that one could count to five for the really basic holding. So, I think that the court is going to punt on that case and find a way to get out of it, which should leave intact the district court opinion, which was a very favorable opinion. That’s a good outcome. I think on the other hand I would expect that in the second marriage case, — which is pending, the DOMA case, the Defense of Marriage Act case, on the federal statute that refuses to recognize same sex marriage that are legal in the states in which they take place — I think there is going to be five votes to declare that statute unconstitutional. I’m not quite sure on what basis. I’m not sure if there will be five justices who agree on the theory, but I think at the end of the day DOMA will fall.

Gaylor: I hope you’re right. You’re brave to put forth your predictions, but you sure know the Supreme Court. Do you have a special chair reserved for you?

Greenhouse: Hah! That would be the day, right!

Gaylor: And now, on to the next year’s Supreme Court. The Supreme Court has taken and appealed what we consider a very good ruling by an appeals court concerning government prayer in Greece, New York. And Linda, we wanted to talk to you about that.

Greenhouse: Right, so this is kind of a surprising case for the court to take because they hadn’t taken one of these in quite a while. I think the reason they haven’t taken one is because those determinative justices who want to expand the ability for legislative prayer and the Ten Commandments postings and all that stuff haven’t been sure that they could count to five. It’s kind of a court in a hurry. This is what I would consider an aggressive grant of the case.

This is a case where the town of Greece, a small town in upstate New York, basically requests volunteers to give invocations at the start of their monthly town board meetings. And for many years, I think about 20 years, every single month, it was a Christian minister who would give almost always a specifically Christological prayer. And a couple of the residents of the town of Greece objected to this. So for a couple of months the town made an effort to reach out to other clergy or non-clergy, just individual volunteers of other faiths or no faiths to come and give the prayer, but that kind of fell away. Basically not all the prayers, but 90% of the prayers, have had some kind of Jesus or Christ reference in them. The Second Circuit, the federal appeals court for New York, said that this violated the Establishment Clause, and the town has appealed. The court is going to hear and decide the case.

Gaylor: So that’s not such a good sign.

Barker: But there could be a lot of reasons why the court might want to clarify something, the different circuits disagree on things. You only need four to grant cert.

Greenhouse: You need four to grant cert., but typically they’re reluctant to grant unless they can win, because why grant a case where you get a national rule, in your view, the wrong way? Earlier this year, maybe last term, the Court let stand a similar holding on the case from the Fourth Circuit, from one of the Carolinas, North Carolina. I just figured there were letting these things stand. But they seem to have an agenda that they want to carry out.

Gaylor: We are watching this so carefully at FFRF because sometimes daily, at least weekly, we get a new complaint about government prayer, a city council or county board prayer, from somebody somewhere in the country.

Barker: Or school districts.

Gaylor: They are offended by it and it’s why FFRF started. My mother and I complained about prayers at our local government and that’s what propelled our group. Now [regarding] Marsh: Our primary litigation attorney, Rich Bolton, would say the Marsh decision on government prayer is an outlier. Would you agree with that reasoning?

Greenhouse: Well, I mean, it’s the most directly applicable Supreme Court precedent. So Marsh against Chambers upholds legislative prayer but as I recall that case, and you may know it more intimately that I do, what was clear was that the prayers were really non-denominational. They were not Christological.

Gaylor: And they weren’t directed at constituents because it was the Unicameral Branch of the Nebraska State Legislature.

Greenhouse: Right, right. You could say it was an outlier, or you could say it was really limited to its fact and when the facts differ from it, as notably as the Town of Greece with this tradition of very specific Christological prayer . . . It’s not, you could say, it’s not covered by Marsh: It’s something else. It’s more like Lee v. Weisman, which well, that also graduation prayer. The courts shut down prayer at a high school graduation. That’s a more recent case than Marsh.

Gaylor: I think that Rich Bolton says this is an outlier because the rationale for Marsh was that it was a tradition. In other words it was a tradition to unite church and state. So therefore it was okay, and that reasoning is so-all-by -itself.

Greenhouse: Right, the Congress has always had a chaplain and so on and so on.

Gaylor: That’s not why you would say would something is constitutional or not.

Greenhouse: You know, I guess they say: Well, the framers directly set up Congress and had prayer from the very beginning and so on and so on. But for towns to start doing it nominally non-denominational, but when you examine the facts that’s not how the facts stack up, that’s really a whole different setting. And that’s why it’s just surprising that the court granted this case.

Gaylor: Well, we are going to be watching the Supreme Court with a lot of suspense in the next month and next year as well on that Greece case. We will be looking forward to your commentary on it. Thank you so much, Linda Greenhouse, for joining us today.

-Thanks to FFRF Publicist Lauryn Seering for transcribing the interview.